Chief Justice of the United States Taney's decision in Ex Parte Merryman
resolved any questions on this in 1861 by holding that this power rests
solely in the Congress, and no Supreme Court decision since then has modified
Merryman since it was so well reasoned and presented.  I am afraid that legal
precedent overrules the both of you, and overruled Lincoln in 1861.  However,
he ignored the Court and after Merryman wholesale arrested anyone who
publicly disagreed with his positions.  And why not?  He had the standing
power of the US military to back up in whatever he wanted to, and so he never
felt compelled to follow the Constitution once he had the military to make
him the King.

Since in the 19th century Congress rarely met and transportation from distant
states was slow, Lincoln can be forgiven for his Hamiltonian
conclusion that this power was implicit in the Constitution

I am also surprised by two such distinguished members of academia siding with
the Lincoln philosophy that if it is inconvenient to follow the Constitution
a president is not bound to do so (I wonder why FDR felt it necessary to get
Congressional approval for WWII after the infinitely more immediate threat
posed by the cowardly attack on Pearl Harbor by Japan?).  And what was the
pressing need to start arousing people from their beds in the middle of the
night by armed guards and imprisoning them without due process of law in May
of 1861, as in the case of Merryman?  I am afraid that tyranny is the only
reasonable answer here.  There was certainly no pressing military or national
security basis at that point.  Moreover, Merryman wasn't some cheap street
hood/felon, he was a duly elected member of the Maryland State Legislature
who happened to believe that Maryland should follow the other Southern states
into secession (this is covered by the First Amendment, I think).  And after
the Merryman situation, Lincoln pulled the same stunt with four other
Maryland legislators (apparently following the strategy of Elizabeth I in the
matter of the Book of Common Prayer by locking up every legislator whom you
think is opposed to your position).  No wonder the Maryland state song, which
was written at the time, begins The despot's heel is on thy shore.  Right
they were.

Didn't Hamilton also get shot dead?

And aren't you a little concerned with the facts in Merryman?  The army
arrests a private citizen and imprisons him without specifying charges or
allowing him to confer with legal counsel.  The Chief Justice of the United
States issues a writ for a hearing on the matter, and the military officer in
charge of the prisoner, U.S. General George Cadwalader at Ft. McHenry, first
refuses to accept it, and then once accepted refuses to obey the writ stating
that the president has authorized him to ignore the legal processes of the
United States, and the Chief Justice of the U.S., and he need not respond to
the writ and obey a duly issued order of the United States Supreme Court.
Are you familiar with the term military junta?

Now, I know that America's liberals no longer think the US Supreme Court
needs to be respected since they sent that sniveling wimp Alby Gore to the
unemployment line, but let's be serious.  It is the highest court in the
land, this is a country where the rule of law reins supreme, and its opinions
must be respected and followed by presidents who take an oath of office to
obey and protect the Constitution, including the Constitution as construed by
the Supreme Court.  Lincoln never felt compelled to do so during his tenure
as president when he also felt it was inconvenient, or contrary to his
policy, for him to follow the law of the land.

I would suggest that an infinitely more pressing human emergency exists in
the case of the unborn children whose lives are terminated daily through
abortion. Under the Lincoln approach you apparently support, is President
Bush not bound to follow the Court's Roe v.Wade decision, and its progeny, in
order to meet the immediate need to save human life?  No, the president has
no greater powers than are specifically given to him in the document that
creates the office-the Constitution.  There is no provision in the
Constitution that I am aware of providing that the president can boot strap
himself into additional powers based on the concept of Ipse Dixit, or assume
powers that the Constitution gives to one of the other branches of
government.


JDS


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